Changing Law to Address Changing Markets: A Consequence-Based Inquiry

29 Pages Posted: 26 May 2016 Last revised: 17 Apr 2018

Date Written: January 11, 2017

Abstract

This essay uses consequence-based inquiry (“CBI”) to derive a normative framework for determining when financial market changes should drive legal changes. This framework can improve the current ad hoc and politically distorted lawmaking process, which often results in over- or under-reactive legal changes that are made too late, after harm has occurred. Under the framework, the extent to which financial market changes should drive legal changes should depend on the consequences of the market failures resulting from financial market changes and the consequences of changing the law to attempt to correct those market failures. CBI is broader in several ways than traditional cost-benefit analysis, addressing not only the “how” but also the “when” of regulation and also addressing the “how” more objectively than cost-benefit analysis. Whereas traditional cost-benefit analysis assumes a decision, which may well be politically motivated, to implement specific proposed regulation if its benefits exceed its costs, CBI begins by identifying a financial market change, determining whether any market failures result from the market change, and assessing the consequences of those failures. If those consequences are significantly negative, CBI gets to the next steps of considering legal changes that could correct the harmful failures, examining the consequences of making those changes, and finally balancing consequences to reach a course of action. Those next steps are more objective than cost-benefit analysis; they avoid confirmation bias because they do not necessarily start with any specific proposal, and they are less subject to political distortions.

Suggested Citation

Schwarcz, Steven L., Changing Law to Address Changing Markets: A Consequence-Based Inquiry (January 11, 2017). Law and Contemporary Problems, Vol. 80, No. 1, 2017; Duke Law School Public Law & Legal Theory Series No. 2016-31. Available at SSRN: https://ssrn.com/abstract=2783765

Steven L. Schwarcz (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7060 (Phone)
919-613-7231 (Fax)

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